WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number:
20150062
DECISION DATE:
March 24, 2015
OBJECTING PARTY:
Worker
REPRESENTED by:
Worker Representative
RESPONDENT:
Employer (not participating)
HEARING:
February 27, 2015, Ottawa, Ontario
HEARD by:
H. Mohamed, Appeals Resolution Officer
ISSUE(S)
The worker representative on behalf of the worker is requesting the following
Increase in the Non-Economic Loss (NEL) quantum for the low back
Entitlement to narcotic addiction treatment
Entitlement to loss of earnings (LOE) benefits from March 15, 2004 onwards
BACKGROUND
The claim was allowed for an onset of low back pain on January 14, 2004 for this then 45 year old worker. He had been using a snow plough for two straight days on January 12, and January 13, 2004 and was required to constantly twist his back. The original diagnosis was mechanical back pain. The claim was allowed and he received benefits to January 20, 2004. The worker returned to modified duties at no wage loss and was approved to attend physiotherapy every day.
The worker stopped attending physiotherapy and was also absent from work effective March 15, 2004. He was discharged from physiotherapy with a recommendation to return to his pre-injury work gradually. The Case Manager (CM) was unsuccessful in reaching the worker until March 29, 2004, when he called and advised that his employer had terminated his job due to his not being available for work.
The worker requested entitlement to ongoing treatment and benefits. Updated medical reports confirmed a disc protrusion at L5-S1 and after obtaining a medical opinion, the CM granted ongoing healthcare entitlement. The CM however denied entitlement to any LOE benefits on the basis that the worker was terminated from work due to absences unrelated to the injury and had he not been terminated, the employer would have been able to accommodate him in a modified job. This was outlined in the letter dated October 26, 2004. The worker objected to this decision and submitted that his employer’s reason for terminating him was motivated by his injury.
The worker underwent L5 laminectomy and bilateral L5-S1 foraminotomy on March 6, 2006. Entitlement to the surgery was initially denied after obtaining a medical opinion. This was communicated to the worker in the decision dated February 24, 2006.
In March 2008 the worker contacted the WSIB claiming a recurrence while working as a courier and requested that the WSIB cover the cost of an MRI. This was denied as per the letter dated May 14, 2008. Subsequent letters dated June 1, 2009 and October 13, 2009 reiterated the operating areas decision that the workers ongoing problems were unrelated to the January 2004 workplace injury.
In June 2010 the worker again contacted the WSIB requesting ongoing entitlement to LOE benefits as well as his 2006 surgery. The worker also requested entitlement to narcotic addiction treatment claiming that he became addicted to opioids following his injury.
In a letter dated November 16, 2010, the CM reconsidered the previous decisions and allowed the low back surgery of March 6, 2006 and referred the worker for a non-economic loss (NEL) assessment for the low back. The CM also granted LOE benefits from the date of surgery to September 6, 2006, which would constitute the usual healing time from such a procedure. The CM however maintained that the worker was not entitled to LOE benefits from March 2004 to the date of surgery and from September 6, 2006 onwards on the basis that his termination was unrelated to the workplace injury. In a subsequent letter dated March 21, 2011, the CM denied entitlement to narcotic addiction on the grounds that there was no evidence of any narcotics prescribed to the worker.
The worker went on to receive an 18 per cent NEL award for his low back as noted in the NEL decision letter dated February 18, 2011.
As such, the issues before me are whether the worker is entitled to an increase in his NEL award, whether he has entitlement to narcotic addiction treatment and if he is entitled to LOE benefits beyond March 15, 2004 when he was terminated.
AUTHORITY
Workplace Safety and Insurance Act (WSIA), 1997
Operational policy:
18-03-02 – Payment and Reviewing LOE Benefits (Prior to Final Review)
18-05-03 – Determining the Degree of Permanent Impairment
18-05-04 – Calculating NEL Benefits
17-01-02 – Entitlement to Healthcare
19-04-02 – Re-employment Obligations
19-04-03 – Compliance with the Re-employment Obligation
19-04-08 – Termination after Re-employment
15-05-01 – Secondary Conditions
ANALYSIS
- Has the worker’s NEL award been appropriately rated?
Based on my review of the NEL assessment report as well as the rating schedule, I am satisfied that the worker’s NEL award has been appropriately calculated.
Legislation and policy provide that the degree of a worker’s permanent impairment is determined in accordance with the prescribed rating schedule or criteria, any medical assessments, and having regard to the health information on file. The prescribed rating schedule for most impairments is the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 3rd edition (revised) (the AMA Guides).
In this case, the worker underwent a medical assessment by a roster physician on January 12, 2011. The Physician documented the following findings:
- Flexion from a neutral position
30-44 degrees
- Extension from a neutral position
20 degrees
- Right lateral flexion from a neutral position
20 degrees
- Left lateral flexion from a neutral position
20 degrees
- Standing lordosis measurement
25 degrees
The worker had a, “Surgically treated disc lesion with residual, medically documented pain and rigidity with or without muscle spasm.”
The worker had a ‘Grade 3’ sensory deficit associated with the S1 nerve root. Grade 3 is defined as decreased sensation with or without pain, which interferes with activity.
The worker had a ‘Grade 5’ motor deficit associated with the S1 nerve root. Grade 5 is defined as complete range of motion against gravity and full resistance.
Table 60 of the AMA Guides determines the, “% Impairment of Whole Person,” in relation to, “Abnormal Motion of the Lumbosacral Region – Flexion/ Extension.” Table 61 of the AMA Guides determines the, “% Impairment of Whole Person,” in relation to, “Abnormal Motion and Ankylosis of the Lumbosacral Region – Lateral Flexion.” When comparing the worker’s findings to these two tables, I arrive at the following values:
30-44 degree flexion reflects a 4% whole person impairment
20 degrees extension reflects a 2% whole person impairment
20 degree right lateral flexion reflects a 1% whole person impairment
20 degree left lateral flexion reflects a1% whole person impairment
By adding these values (4% + 2% + 1% + 1%), the worker was correctly rated at 8% Impairment of Whole Person for abnormal motion of the lumbar spine in relation to flexion, extension and lateral flexion.
Table 53 of the AMA Guides provides the % Impairment of Whole Person associated with, “Impairments Due to Specific Disorders of the Spine.” Table 53 IIE provides that where the worker has a, “Surgically treated disc lesion with residual, medically documented pain and rigidity with or without muscle spasm,” at the lumbar spine, an additional 10% impairment of the whole person’ is warranted.
Following the direction of the AMA Guides with respect to combining these values using the ‘Combined Values Chart’, the 8% for abnormal range of motion is combined with the 10% awarded under Table 53 IIE for the surgically treated disc lesion. The combined value of the impairments correctly equates to 17% whole person impairment.
The worker was granted an additional 1 per cent as a result of the Grade 3 sensory deficit at the S1 nerve root. Table 49 of the AMA guides provides that for the S1 nerve root the, “maximum % Loss of Function due to Sensory Deficit, Pain or Discomfort,” is 5%. Table 10 indicates that in the case of a Grade 3 deficit, 60% of the maximum value shall be assessed. 60% of 5% is equal to 3%. According to the combined values chart adding the 3% to the already established 17% equals a whole person impairment of 18%.
Based on my review, the NEL award has been calculated correctly using the correct tables and the correct corresponding values.
The representative has not made any submissions with respect to the values used by the NEL Clinical Specialist or identified any deficiencies in the NEL calculation. At the hearing the representative submitted that in his opinion the NEL rating does not fully capture the extent of the worker’s impairment. He argued that in situations where the NEL does not adequately reflect the degree of impairment, an additional amount can be added by way of discretionary increase, and that a discretionary increase would be warranted in this case.
On page 52 of the AMA Guides it states that in rare cases the severity of the clinical findings does not correspond to the true extent of the musculoskeletal defect. The example provided is when loss of shoulder motion does not correspond to the true extent of musculoskeletal defect such as a severe and irreparable rotator cuff tear of the shoulder. In such cases, a discretionary increase is the NEL quantum is permitted to capture the true essence of the impairment.
I, however, do not agree that this case warrants a discretionary increase in the NEL quantum and neither has the representative referred me to any evidence that the anatomical impairment did not appropriately rate the severity of the worker’s condition as required by the AMA Guides.
As such, I am satisfied that the worker’s NEL quantum has been appropriately rated at 18 per cent.
- Is the worker entitled to narcotic addiction treatment?
I am not persuaded on the balance of probabilities that the worker has entitlement to narcotic addiction treatment.
Entitlement for any secondary condition is accepted when it is established that a causal link exists between it and the work-related injury. It is well accepted that the test for determining causation is that of significant or material contribution. A significant or material contributing factor is one of considerable effect or importance. It need not be the sole contributing factor.
The worker testified that he had no problems with narcotics before the workplace injury. Prior to 2004 he had a few work-related injuries and was prescribed Percocet’s but it never led to an addiction. However following his last accident in 2004 he did develop an addiction to narcotics. The worker testified that following his injury he was prescribed Percocet’s (Oxycocet) and also Tylenol #3’s and Naproxen.
The worker advised that after his injury, the medications prescribed by his family doctor, Dr. ‘C’ were not doing anything for him so he resorted to buying OxyContin pills from off the street. He explained that Dr. C wouldn’t prescribe any strong opioids so he had no choice but to buy them illegally at $30-$40 a pill. He started with only 20mgs at first but then went from 40 to 80mgs up to three times a day. After taking these he had no pain and felt great. He said he got addicted to them for nearly five years before he decided to do something about this problem in 2009. He also testified that he started drinking heavily around this time. He believes his addiction was caused by the pain. When asked how he funded this habit, he said he borrowed money from friends.
In 2009 he finally realized that he could not continue like this and enrolled himself in an addiction rehabilitation program at Sobriety House in 2009 for 28 days. He initially went to a detoxification centre around September 21, 2009 and then was approved to attend rehabilitation. Following this he went to Life House which is run by the Ottawa Mission and participated in their five month after care program at their residence facility and maintained his sobriety.
The worker explained that since 2009 he has not touched any opioids and currently he is taking Lyrica, Cymbalta and ibuprofen 400mgs. He has been taking these since completing rehabilitation in 2009. He advised that he was on Ontario Disability Support Program (ODSP) benefits and they are continuing to cover his medications.
In looking at the medical evidence on file, I note that Dr C wrote to the Adjudicator on August 20, 2004 confirming that the worker was on Naproxen and Tylenol #3 on an ‘as needed’ basis. There was no mention of him being prescribed any Percocet’s at this time. There is no mention in any of the clinical notes that the worker was requesting stronger opioids.
The worker was seen by Dr. ‘M’ on January 4, 2006 and it was noted at this point that the worker would benefit from surgery. Despite this, the worker never asked Dr. M for strong pain medications. Dr. M noted that the worker was taking no medications other than analgesics. Considering the worker testified he was paying up to $40 a pill for OxyContin, I’m not sure why he never asked Dr. M to prescribe this to him. Back in 2006, OxyContin was still widely dispensed by doctors and Dr. M could certainly have prescribed this or Percocet’s on an as needed basis especially when considering that the worker was going to have surgery. Not only was it not prescribed but it wasn’t even asked for by the worker. Dr. M’s reports in March and April 2006 following his surgery also make no mention of the worker being in any excessive pain or needing any strong opioids.
Dr. C completed a Health Professional Continuity Report (REO8) on May 16, 2008, two years following the surgery and he notes that the worker was not prescribed any medications between March 13, 2006 and March 27, 2008.
The worker was seen by Dr. M again on December 9, 2009 and noted that the worker had started to complain of left buttock pain for the last 24 months with pain sometimes radiating down his left leg. Dr. M felt the worker’s condition had not changed from pre-surgery and recommended the worker continue conservative treatment.
Based on my review, it is clear the worker was never prescribed Percocet’s or OxyContin at any point. More importantly, I see no evidence on file that this was ever requested by the worker or that his pain was so bad that it necessitated strong narcotic medication. I also see no medical reports talking about the worker’s addiction and whether it was actually related to opioid addiction or other narcotic addictions.
During questioning the worker acknowledged that he was going through a difficult separation around the time of the injury and agreed that this caused a lot of emotional issues for him and as a result of this divorce he ended up losing his house sometime in 2004 and had to file bankruptcy around the same time as well. The worker stated that he, “lost everything.” The worker also advised that in 2006 he was involved in a motor vehicle accident (MVA) and sustained injuries to his chin and head. It is just as likely that the worker may have turned to alcohol and narcotics in order to avoid the emotional pain that he was undergoing during this difficult period in his life. Without any evidence of a causal connection between the narcotic abuse and his injury, I am not persuaded that the worker has entitlement to any narcotic treatment.
- Is the worker entitled to LOE benefits following his termination on March 15, 2004?
Based on the evidence, I am persuaded that that worker is entitled to LOE benefits following his termination on March 15, 2004.
In reviewing the file record, I note that following the workplace injury the employer provided the worker with modified duties effective January 20, 2004 as a car jockey. No actual job description was provided but the job entailed driving a shuttle bus to drop customers off.
A Return to Work (RTW) Advisor reviewed the file on February 11, 2004 (memorandum 5) due to employers concerns that the worker was unwilling to compress his lunch period despite going to physiotherapy from 1-3pm. The RTW Advisor notes that there appeared to be some poor communication between the workplace parties and it was recommended that the Adjudicator obtain a detailed job description of the pre-accident job duties. Mediation was also suggested should the workplace parties be unable to resolve these issues.
The Adjudicator spoke with the employer on March 18, 2004 and was advised that they were unable to reach the worker and that since he had performance issues in the past, they would deal with this current absence based on their company procedures.
The Nurse consultant spoke with the physiotherapist on March 22, 2004 and it was confirmed that the worker had not attended his therapy for nearly one week however he had been compliant with both therapy and return to work up until this point.
The worker was subsequently terminated as he failed to show up for work and did not notify anyone of his whereabouts for over a week. When the worker did speak to the Adjudicator on March 29, 2004 he advised that he was absent from work due to going through a divorce. In memorandum 16, the Adjudicator advised the worker that she would contact the employer to determine the reason for the termination and if it was related to the injury then she would review entitlement.
The worker advised that contrary to the employer’s statements, he did in fact call in his absences from work but he spoke to co-workers and that this was an established practice condoned by the employer. The Adjudicator subsequently spoke to a few of the co-workers in December 2004 that the worker mentioned and they all verified that the worker had called in his absences to them and that they may or may not have advised the supervisor. In memorandum 43, the Adjudicator spoke with the employer contact and she confirmed that calling in to co-workers was a tolerated practice. The employer contact stated that the final straw was when the director of operations finally got a hold of the worker and asked him to come in and meet with him, the worker failed to attend that meeting and was therefore terminated. No details however were provided with respect to this call or what conversation took place. The worker was also never asked about this call.
The employer provided a letter confirming that the termination was due to his absences and also provided an ‘Employee Warning Record’ and ‘Termination of Employment’ form. The warning letter was dated March 15, 2004 (the day the worker stopped attending) and was signed by the supervisor. The worker was obviously not available to sign it. The termination of employment form was completed by the director of operations and simply stated ‘AWOL’ (absent without leave) as the reason for termination.
Section 41 of the Workplace Safety and Insurance Act 1997 (WSIA) states:
(1) The employer of a worker who has been unable to work as a result of an injury and who, on the date of the injury, had been employed continuously for at least one year by the employer shall offer to re-employ the worker in accordance with this section.
(2) This section does not apply in respect of employers who regularly employ fewer than 20 workers or such classes of employers as may be prescribed.
(10) If an employer re-employs a worker in accordance with this section and then terminates the employment within six months, the employer is presumed not to have fulfilled the employer’s obligations under this section. The employer may rebut the presumption by showing that the termination of the worker’s employment was not related to the injury
The re-employment presumption found in section 41(10) of the WSIA applies in this case because the worker was terminated within six months of his return to work date following the injury. This means that the operating area should have investigated the termination more thoroughly and their failure to do this in a timely fashion has made it very difficult to make a proper ruling on this matter given the passage of time.
The above policies on re-employment indicate that the employer must demonstrate sufficient evidence to dispel doubt about the reasons for the termination. If there is insufficient evidence, or doubt about the employer’s motives, the decision-maker presumes that a breach occurred. In looking at the record, no company policies were provided by the employer even though they indicated that the worker was being terminated per company policy. Given that the worker was employed with this employer for over 29 years at the time of his termination, the employer was unable to provide any documented evidence to support any pre-accident performance or absence issues. More importantly, none were ever requested by the Adjudicator. At the very least, a WSIB investigator should have been assigned to obtain relevant documents and statements but this was not done and the onus was unfairly placed on the worker to make his case contrary to the presumption outlined in section 41(10).
I have reviewed the “Employee Warning Record” provided by the employer dated March 15, 2004. This record notes that that this was the first warning. I see no other record of any further warnings and more importantly no evidence that this warning was mailed to the worker. Immediately after this, the worker was terminated. As noted in memorandum 5 there was already friction between the employer and the worker with respect to his lunch hour and ongoing physiotherapy sessions. It was felt that there was poor communication between the parties and as early as February 2004 it was felt that mediation would be of assistance.
The fact remains that eventually the operating area accepted that the worker had entitlement to a L5 disc herniation and also accepted that the L5 laminectomy and the bilateral L5/S1 foraminotomy were the responsibility of this claim. The worker subsequently received an 18 % NEL award.
Considering the allowance of this condition, one would assume that in the weeks following the injury the worker was more likely than not in the acute phase of his injury. Unfortunately, there was no detailed job description of the modified job duties provided but in my opinion, driving around all day as a car jockey would contravene the restriction of prolonged sitting. No attempt was made by the operating area to review the job duties or to engage mediation services at any point. There is no discussion anywhere on file with the employer as to whether they would have been able to permanently accommodate the worker in light of the permanent restrictions which the operating level eventually accepted.
It is certainly possible that had a thorough investigation been conducted following the termination, the employer may very well have been able to rebut the presumption. There is no dispute that the worker was having personal issues during this period and with the proper documentation the employer may have demonstrated that the injury played no part in their decision to terminate the worker. But the worker should not have been the one to be penalised due to the operating areas reluctance to conduct an investigation into this matter. Section 41(10) provides an added layer of protection for an injured worker that must be applied with diligence.
Based on my review of the record, there is insufficient evidence to determine whether an actual re-employment breach occurred and therefore I make no finding on this issue. What is evident, however, is after March 15, 2004 the offer of modified work was removed by the employer and considering that a permanent impairment was eventually accepted, the worker is entitled to LOE benefits following his termination.
With respect to the quantum of benefits payable, it is my opinion that the medical evidence throughout 2004 supports significant symptomology that warrants the payment of full LOE benefits. The CT scan of July 22, 2004 confirmed a left foraminal disc protrusion at the L5-S1 level compressing on the exiting L5 nerve root. In October 2004 the worker was referred for physiotherapy and the findings confirmed the presence of radicular pain into the left foot. The therapist recommended 8-12 weeks of daily therapy. The CBI physiotherapy discharge report dated January 21, 2005 states that the worker attended 41 sessions of treatment and was discharged on January 17, 2005 with a home exercise program as his condition had greatly improved. As such, the worker should be paid full LOE benefits from March 15, 2004 to January 17, 2005.
There is no medical information from January 17, 2005 until January 4, 2006 when he was assessed by Dr. M. Although Dr. M recommended surgery, his report, however, does not indicate that the worker was totally disabled from working. As such, I conclude that the worker remained partially disabled until he had surgery on March 6, 2006. The operating area accepted the surgery and paid the worker full LOE benefits from the date of his surgery until September 6, 2006, a period of six months.
Since I have concluded that the worker was partially disabled from January 17, 2005 until his surgery date, the file should be referred to a Work Transition (WT) Specialist to determine a suitable occupation (SO) without training that the worker could have engaged in and benefits should be paid based on these wages.
After his surgery the worker testified that initially he felt a lot better but his condition deteriorated shortly after and he continues to have pain in his back and left foot. The worker advised through his testimony that he did start working as a courier sometime in 2008 but this was short lived. According to the REO8 dated March 16, 2009, Dr. C notes that the worker had back pain while working as a courier. The worker was vague in terms of where he worked in 2008 and 2009 and could not provide exact dates.
The worker also confirmed that he is currently employed as a dental courier on a full time basis, and has been employed in this position for about a year and a half, though he could not recall the exact date he was hired. He advised that he is not sure how long he can do this job because he feels that constant sitting and walking causes further discomfort in his back. The worker also advised that there was a period of time in 2009 that he went back to school to obtain his Grade 12 Diploma however it was not made clear as to the dates he attended and whether this was part-time or full time. The worker also confirmed that he was on ODSP around 2009 due to his addiction and low back problem and continued receiving these benefits.
Given the information noted above, the worker would be entitled to partial LOE benefits from September 6, 2006 until he found full time employment as a dental courier sometime in 2013. These partial benefits should be based again on a direct entry SO minus any periods of employment where his income exceeded his partial deeded wages. Medical reports on file also indicate that the worker participated in a pain management program in January 2013. The worker should be paid full LOE benefits from the time he was admitted in the pain management clinic until his discharge.
I am unsure as to whether the worker’s current job of dental courier is suitable or sustainable given that the job requires prolonged sitting. The worker did testify that most of the driving is done in the city and he has been able to maintain full time hours since starting employment, though he was unsure how long he could continue doing this job. Since there are no updated medical reports on file indicating the worker’s medical status since starting this job, I shall leave this determination to the operating area and the WT Specialist and make no findings with respect to this issue.
CONCLUSION
Based on the foregoing, I conclude the following:
The worker’s low back NEL quantum has been appropriately rated at 18 per cent.
The worker is not entitled to narcotic addiction treatment
The worker is entitled to LOE benefits beyond his termination on March 15, 2004. Entitlement to benefits, as outlined in the body of my decision, is as follows:
Full LOE benefits from the date of termination until January 17, 2005.
Partial LOE benefits based on a direct entry SO from January 18, 2005 to March 6, 2006.
Partial LOE benefits from September 6, 2006 based on a direct entry SO until the worker found full time employment as a dental courier.
Full LOE benefits for the period of time the worker was participating in a pain management program in early 2013.
The worker’s appeal is allowed in part.
DATED: March 24, 2015
Mr. H. Mohamed
Appeals Resolution Officer
Appeals Services Division